An Evaluation On The Possibility Of Likes And Retweet Reactions On Social Media To Constitute Crime Of Defamation

Social Media users may occasionally think that the posts they like or reshared are not their responsibility since it is not a post produced/written by the person who likes or reshared it.

 

However, liking and re-sharing activities, such as personal shares from social media accounts, may lead to responsibility of individuals and even the institutions they labor when the liked or re-shared post contains unlawful content.

 

Can a person commit crime of defamation by liking or resharing a post produced/written by another person?

 

Pursuant to Article 125/1,2 of the Turkish Penal Code (“TPC”), Any person who attributes an act, or fact, to a person in a manner that may impugn that person’s honour, dignity or prestige, or attacks someone’s honour, dignity or prestige by swearing shall be sentenced to a penalty of imprisonment for a term of three months to two years or a judicial fine. To be culpable for an insult made in the absence of the victim, the act should be committed in the presence of at least three further people. Where the act is committed by means of an oral, written or visual medium message, addressing the victim, the penalty stated in the above paragraph shall be imposed.” Also, pursuant to TPC Article 125/4, where the insult is committed in public, the penalty to be imposed shall be increased by one sixth. According to article justification, the main criterion sought for publicity is that the act is unspecified in terms of the conditions in which it occurs and can be perceived by more than one person.

 

I. CASE LAW OF THE COURT OF CASSATION

 

The precedent decisions of Court of Cassation on whether liking or sharing insulting posts on social media sites such as Twitter and Facebook also be considered as committed by the sharer of the defamation crime are as follows:

  • 18th Penal Chamber of the Court of Cassation, dated 16.01.2019 Case Number: 2018/7790 Decision Number 2019/1445: “In the examined file, since it is understood that the suspect’s name and surname are written on the Twitter account @.. user, shares (retweets) were made by mentioning the complainant; pursuant to Criminal Procedure Code Article 170/2, the available evidence in the file creates sufficient suspicion for the suspect to be charged defamation. Whether the suspect’s action is confirmed or not should be determined as a result of the discussion and evaluation of all evidence together by the court. According to the statements made, the decision not to prosecute suspect and the decision of the authority regarding the rejection of the objection given are unlawful.”
  • 18th Penal Chamber of the Court of Cassation, dated 18.04.2018 Case Number: 2016/12944 Decision Number: 2018/5756:In light of these statements, when the concrete incident is evaluated, it is understood that the defendant clearly meant the defendant based on the dates of the crime, the statements and pictures used in the posts and the acquittal without regard to the elements of the offence of defamation due to the humiliating, insulting, honor and dignity of these posts, with the statements in the tweets and retweets posted on the social networking site Twitter, … it has been decided to overturn the sentence.”
  • 18th Penal Chamber of the Court of Cassation, Case Number: 2015/10377 Decision Number: 2015/12777: .: “In the face of the fact that the defendant retweeted the tweet posted by the other defendant on the social networking site twitter, by his own confession, regardless of the elements of the defamation the public official in chains due to his duty , the conviction of the defendant was acquitted instead of the conviction of the defendant it has been decided to overturn the sentence.”
  • 18th Penal Chamber of the Court of Cassation, dated 12.10.2015 Case Number: 2015/7732 Decision Number: 2015/7170: The verdict of acquittal of the accused was given since he liked and share the article about the defendant on the page belonging to him on the social networking site, regardless of whether the intent element of the false crime occurred, … the judgement was reversed.”
  • 4th Penal Chamber of the Court of Cassation, dated 17.11.2014 Case Number: 2013/5598 E. Decision Number: 2014/33171: The defendant’s act consisting of liking insulting messages sent under the name of “C. car wash” and “A.. K..” profiles, on the social networking site, will not constitute defamation if these messages are shared on the internet or not conveyed to others. It would be within the scope of personal evaluation and without investigating this matter, it was decided that the sentence was given with insufficient justification, … the judgement was reversed.”

 

Based on mentioned decisions, it can be said that Court of Cassation has established jurisprudence that the defamation will occur by sharing/retweeting insulting social media posts.

 

II. CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

 

The decision of the European Court of Human Rights (“ECHR”), which will be mentioning in the sub-heading and the basis of the opinion that the defamation cannot be formed by liking or sharing a post, is the decision of Melike v Turkey[1] dated 15.06.2021, which was established upon the application numbered 35786/19.

 

The applicant, Selma Melike, who is the subject of the decision, works as a contracted cleaning staff of the Ministry of National Education. In March 2016, a disciplinary investigation was initiated against the applicant on the grounds that she pressed the “Like” button for various posts made by third parties on Facebook. In September 2016, the Disciplinary Board dismissed the applicant for her behavior that violated the provisions of the collective labor agreement in force at the workplace and disturbed the peace and tranquility in the workplace. Following the decision, the applicant filed a lawsuit for reemployment. The content of the shares liked by the applicant has been described as heavy political criticism, angry statements about the killing of the bar president, accusations of abuse of students in institutions overseen by the authorities and a sharp response to sexist remarks made by a prominent religious figure. The reemployment lawsuit was rejected by the local court and this decision became final. As a result of the examination of the application, the ECHR decided that the right to freedom of expression had been violated. The reasons for the violation decision can be summarized as the disciplinary board and courts do not adequately examine the content of the posts and the potential of the applicant’s liking for these posts, the sanction of dismissal is severe considering the seniority and age of the applicant, the obligation of loyalty to the state of the applicant, who works as contracted personnel under the Labor Law, cannot be evaluated as strictly as a public official.

 

With the aspects explained above, the decision does not give a clear idea as to whether the defamation can occur through retweeting or sharing. However, the ECHR included an important assessment in part of the decision regarding the “like” of the posts:

 

“The applicant had been dismissed for having clicked the “Like” button on a number of articles posted by third parties on Facebook, the online social networking site. The use of “likes” on social networks, which could be regarded as enabling people to show their interest in and approval of content, was, as such, a common and popular form of exercising freedom of expression online.

In this connection, the applicant was not the individual who had created and published the impugned content on the social network in question; her action had been limited to clicking on the “Like” button below that content. The fact of adding a “Like” to content could not be considered to carry the same weight as sharing content on social networks, in that a “Like” merely expressed sympathy for the content published, and not an active desire to disseminate it. Further, the authorities had not alleged that the content in question had reached a very large audience on the social media concerned. Some of the relevant posts had received only about a dozen “likes” and very few comments. Moreover, given the nature of her position, the applicant could not have been particularly well-known and had only limited representative status in her workplace, and her activities on Facebook could not have had a significant impact on pupils, parents, teachers and other employees. Moreover, the national authorities had not sought to establish in their decisions whether the latter had had access to the applicant’s Facebook account or to the contested “likes”, on the basis of the parameters, connections and degree of popularity of the applicant’s profile on that social network.”

 

The ECHR, in the quoted paragraph; emphasized that the content of the applicant’s shares is limited to liking only, that she does not create the content that is the subject of the application, that the act of liking and sharing a content cannot have the same weight, that the act of liking cannot be considered as an active request in terms of sharing the content and made concrete evaluations on the applicant’s social media page. In this respect, it can be said that the decision allows making a distinction between liking and retweeting a post, regardless of whether it contains insults or not that essentially includes this situation.

 

 

III. OPINIONS

 

A. Defamation Will not Occur:

 

Defamation cannot be committed by liking or sharing (retweet) insulting posts on social media sites and therefore it is seen that the main basis of the opinion, which asserts that the case law of the Court of Cassation is wrong, is the decision of the ECHR given above. Those who support this view state that the case-law of the Court of Cassation has lost its validity in accordance with the ECHR’s decision dated 2021. However, in the ECHR’s decision, the state of liking the post was clearly evaluated and it was revealed that the reaction of liking had a lighter weight than the sharing process. For this reason, it does not seem appropriate to defend this view only by the relevant ECHR decision.

 

 

B. Defamation Will Occur:

 

Those who defend defamation may constitute by liking or retweeting posts on social media sites; claim that by sharing/retweeting the insulting content is adopted and the content is intended to be accessed by other people, therefore they claim that the severity of violation of the protected legal interest of the victim is increased.  Those who support this opinion state that there is no contradiction between the case-law of the Court of Cassation and the decision of the ECHR in Melike v Turkey, and that the decision of the ECHR does not have the effect of changing the case-law of the Court of Cassation that the defamation will occur. As a matter of fact, in the decision of the 4th Penal Chamber of the Court of Cassation, dated 17.11.2014 and case number 2013/5598 decision number 2014/33171, it is seen that there is a difference between liking and sharing, and it has been revealed that a defamation will not occur if only a reaction of liking is given. In this respect, it can even be stated that the case-law of the Court of Cassation is compatible with the case-law of the ECHR rather than contradicting it.

[1] http://hudoc.echr.coe.int/eng?i=002-13303